QUESTION ONE

Under Evidence Act 1950, s. 113 states that, a boy under the age of 13 years cannot commit
rape. This provision derives from the doctrine of doli incapax, which originated in the
seventeenth century, where a child under the age of 14 cannot commit crime by reason of
age. Some of the arguments raised in forums on law regarding rape are, the offence of rape
depends on the ability to penetrate, rather than on the child’s puberty. The age which a child
reach puberty should be looked on an individual basis, as opposed to 13 years old, many boys
reached puberty earlier than that. The case of the late Nur Shuhada Burak, who was five years
old at that time when she was murdered after being raped by her neighbor who was 12 year
old, was one of the instances showing that, a boy as early as 11 year old is capable of
committing rape (The Star, 2013).

The doctrine of doli incapax has been abolished in England and Wales, through the
Crime and Disorder Act 1998 and section 1 of the Sexual Offences Act 1993. In
Tasmania, the presumption only applies to child under 7 years of age while in Scotland, the
law has never recognized the doctrine. In Hong Kong, doli incapax applies to a child
between 10 to 14 years of age. Section 118 of the Crimes Ordinance (Cap 200) has
abolished the presumption that a boy under the age of 14 is incapable of committing rape.
Thus, a child under 14 years old but above 10 years old may be held liable for committing
rape. The prosecution must prove beyond reasonable doubt that the child knew what he was
doing was gravely wrong. In India, section 82 of Indian Penal Code provides the
irrebuttable presumption that nothing done by a child under 7 years old could be an offence.
Meanwhile in Singapore, section 115 of the Singaporean Evidence Act on the irrebuttable
presumption of a boy under 13 years of age cannot commit rape, has been repealed. Thus,
there is no such presumption under Singaporean law as of now.

A research conducted back in 2009 had come up with the conclusion that, a child as
young as 11 years of age is capable of sexual intercourse. The researchers in the study by
Iowa State University collectively stated that, a lot of children have been reported having sex
as early as 8 years old and compared to girls, boys experienced having first sexual intercourse
at earlier age, which is 12.48 years old, while girls at 13.16 years old. The study found that
one of the main factors causing early sexual intercourse is due to instability in the family
institution, welfare, household income and involvement of the child in delinquent activities.
In one case involving a 42 year old woman and 2 teenagers aged 13 and 14, the prosecution
stated that boys at that age are capable and willing to involve in sexual activities but are
unable and still immature to deal with the consequences of their action later on.

The irrebuttable presumption in section 113 of the Evidence Act can be considered as
outdated since even its origin has been abolished. It may be suitable for twenty or thirty years
back but for now, with the modernization and growth in technology that the world is
experiencing, we can see that children are maturing and reaching puberty faster than before.
Puberty among others, stimulates sexual behavior and desires. On average, puberty nowadays
begin around 11 to 12 in boys and 10 to 11 in girls. Children are highly technologically savvy
and easily influenced by their peers and surrounding. Websites that provide illegal and
inappropriate contents can be easily accessed by the children, especially without parental
guidance. Crime rates are overwhelmingly higher than before, where child offender is no
longer a rare case. With this provision still in force, sex predator in child is well protected,
while the number of victims of these offenders are still on the rise. This presumption of a
child below 13 year old’s incapability to commit rape has proven to no longer suit the current
time frame and should be abolished altogether or rather, should be amended into lower range
of age.

QUESTION TWO

Illustration (g) to section 114 of the Evidence Act 1950 states that, it is in the discretion of
the Court to presume that any evidence which could be but is not produced would, if
produced, be unfavorable to the person who withholds it. When somebody failed to prove his
claim, then the presumption is, the claim is untrue. Ways of invoking adverse inference in
criminal cases can be divided into two categories, namely presumption against the
prosecution and presumption against the defence or the accused. Apart from that, in
Munusamy v PP [1987] 1 MLJ 492, this presumption can only be invoked if there is a
withholding of material evidence, rather than mere failure to produce the evidence.

Firstly, for presumption of adverse inference against the prosecution, based on the
case of Low Kian Boon v PP [2010] 4 MLJ 425, the prosecution has the discretion to choose
which witness to be called and what kind of documents to be tendered. Upon the tendering of
evidence by prosecution, it is then the duty of the court to decide whether the evidence
tendered before it can prove the prosecution’s case beyond reasonable doubt. Next,
Namasiyam v PP [1987] 2 MLJ 336 stated that, mere fact that the prosecution has failed to
produce an informer should not enable the court to invoke illustration (g) to section 114 of
the Evidence Act 1950, as in that case, the prosecution’s evidence was overwhelmingly
plenty and should suffice in proving prosecution’s case. Next, the prosecution shall not offer
his witness to the defence. Given that the duty to prove the case is on the prosecution, the
prosecution shall not discharge that duty by merely making available his witness to the
defence, as decided in Tay Kok Wah v PP [2012] 3 AMR 347. Lastly, through the case of
Wan Yurilhami Wan Yaacob & Anor v PP [2010] 1 CLJ 17, the court and the defence must
acknowledge the fact that witness who is an informer in cases which involves drugs, has the
privilege of being protected under section 40(1) of the Dangerous Drugs Act, and thus the
presumption of adverse inference cannot be invoked against the prosecution.

Secondly, for presumption of adverse inference against the defence, the burden to
prove the case is on the prosecution instead of the accused and accordingly, no presumption
can be invoked against the accused. In the case of Goh Ah Yew v PP [1949] MLJ 150, the
Court stated that the accused has the liberty whether to produce evidence or not and no
inference unfavorable to him can be drawn out of it, given that it is not in the accused
person’s duty to prove anything, but only to raise reasonable doubt. The onus of proving the
case will only shift towards the defence when the presumption of law is invoked. In
Baharom v PP [1960] MLJ 249, the accused relied on the defence of insanity and thus the
onus to prove shifted on the accused. However, accused failed to produce evidence on
insanity, when in fact, the prison medical officer and the medical superintendent at the mental
hospital could have been called and testify the claim on insanity. Thus, presumption of
adverse inference had been raised against the accused. The case of Choo Chang Teik v PP
[1991] 3 MLJ 423, the accused was convicted of drug trafficking. When the police raided the
house where the drugs were found, the accused had run away and claimed that he was
attacked by some thugs as he thought the police was those thugs. However, accused failed to
call them as witnesses in order to support his claim and thus, presumption of adverse
inference was invoked against him.

QUESTION THREE

Estoppel is a doctrine of common law with the purpose of stopping or preventing someone
from going back on his words or conduct, when it becomes unjust for him. A person is
estopped from denying a fact that he had priorly admitted as the truth. This is one of the tools
to prevent evidence from being admissible. There are three types of estoppel namely estoppel
by record, estoppel by pais or conduct and estoppel by deed. Estoppel by pais or conduct is
governed under sections 115, 116 and 117 of the Evidence Act 1950. There are two
requirements to invoke estoppel by conduct whereby, the party who wants to claim estoppel
must show mutuality or reciprocity; and must show that he was unaware of the real state of
things. Otherwise, there can be no estoppel. The first requirement was decided by Gopal Sri
Ram JCA in Low Lee Lian v Ban Hin Lee Bank Bhd [1997] 1 MLJ 77.

When one party promised or assured the other party by his words or conduct, which
was meant to affect legal relations between them and to be acted accordingly, and the other
party has acted on it, the party making the promise or assurance cannot go back against his
promise before it was made. Rather than that, the party making the promise must
acknowledge their legal relations, which he himself has introduced. This is based on
Halsbury’s Laws of England (Third Ed) vol. 15, p. 175. In Commissioners of the
Municipality of Malacca v Sinniah [1974] 1 MLJ 77, the defendant who was the employee
of the plaintiff were given a quarters due to his employment. In his record of service, he was
25 years old in 1938, which means he was born in 1913 and since one is allowed to be in the
force only up until they turned 55 years old, then the defendant can only remain in
employment until 1968. However, when the time comes, defendant argued that he was born
in 1922, that he is yet to be evicted. Thus he claimed that his retirement at that time was
wrongful and he has the right to remain in the quarters until he turns 55 years old. The court
held that, the defendant was estopped from denying that he was 25 years old at the time of his
employment, based on the record of service, as he was employed by the plaintiff based the
faith induced by him that he was 25 years of age.

The doctrine of estoppel can be applied here as the record of service of the defendant
binds both plaintiff and defendant to the dispute of the employment. Based on this case, the
defendant had either by words or conduct, represented himself as being 25 years old at the
time of his employment, and the plaintiff, believing it as the truth, had acted upon it and
proceeded to employ the defendant and allotted the quarters to the defendant. According to
the record of service, the defendant had the remaining of 30 years before he attained the age
of 55 in which he should be retired by then. The act of the plaintiff retiring the defendant
once he attained 55 years old based on the record of service, was right as plaintiff relied on
the fact given by the defendant himself. Defendant should be estopped from going back on
his words when the situation is unfavorable to him, where he must vacate the quarters. Just
like how the plaintiff is estopped from evicting the defendant out of the quarters before his
retirement, the defendant should also be estopped from denying his date of birth in the record
of service, as he formerly admitted to it. In this case, it can be seen that even if the role is
reversed, the doctrine of estoppel will not cause injustice to the parties. For instance, if
plaintiff was the one who wrongfully dismissed the defendant from his employment, then
plaintiff will be estopped by law from doing so and must retain defendant’s former position.
Based on my understanding, it is what Gopal Sri Ram JCA intended to convey through the
case of Low Lee Lian v Ban Hin Lee Bank Bhd.